If you’re incapable in Ontario you’re at risk.
Especially with Section 3 counsel. Incapable people have none of the inherent protections in a lawyer client relationship. They do not choose the lawyer and cannot fire them. They are also obligated to pay Sections 3’s bills. And though Section 3 is only appointed when capacity is at issue, the person is are “deemed” capable to instruct counsel. Whatever is actually said is protected by lawyer client privilege so it’s the lawyers word as to the incapable persons instructions.
Though our case went on for almost 10 months, Section 3 met my Mom for only 3 hours and there were 9 months of hearings after their last discussion. Even a capable person can’t provide instructions clear enough to cover 5 days of hearings, settlement discussions and cost discussions 9 months after the last discussion.
In a normal lawyer client relationship, the lawyer would only act on the clients` instruction.
The Rules of Professional Conduct require “communication at all relevant stages of a matter” (3.1-1 d) and “A lawyer cannot render effective professional service to the client unless there is full and unreserved communication between them.” (3.3-1 ).
Didn’t seem to happen with Mom.
The lawyer repeatedly advanced positions without ever speaking to her. Motions were launched without approval, settlement offers were dismissed without discussion with her, guardianship plans that were against her wishes were supported without so much as a nod in her direction.
And at every step Section 3’s bill grew and grew.